Maine must speed up transition to public defender system

By Ryan Williams

In January, a Maine judge found the independent state agency that operates public defense had violated state criminal defendants’ right to a lawyer. This month, the same judge ordered that the agency has until April 3 to provide a plan to remedy the issue. After that, the court ordered that defendants must be released from jail if they have gone more than 14 days without an attorney, and defendants without an attorney for 60 days must have their charges dismissed.

In the United States, we have a constitutional right to due process. This means that if we are accused of a crime, we are guaranteed the right to a lawyer to represent us, even if we cannot afford an expensive attorney. However, in Maine, this is currently not the case for more than 700 criminal defendants, who qualify for a state-provided lawyer but do not have one. About 100 of these defendants are in jail, and 51 have waited for a lawyer for more than a year.  

States decide how to provide lawyers for those who need them. The most common method is a public defender, or a lawyer who works for state or local government. Until recently, Maine was the only state without a public defender system. Under the new system that started in 2022, there are now five public defenders’ offices serving defendants in 10 of Maine’s 16 counties, but these offices have struggled to hire full-time lawyers. For the most part, the state still relies on a roster of available private attorneys, who don’t work for the state but who are assigned to defend clients on a case-by-case basis.

The current system is not working. The number of available private attorneys has declined, and who can blame these lawyers, when they could make much more from private clients than the state’s rates, which recently increased to $150 per hour? Further, public defense cases take a toll on lawyers, and many report burnout, high stress, and have considered changing careers.  Meanwhile, the public defenders’ offices have not made up the difference. 

To fix this crisis, Maine must look to the findings of academic research and examine what has worked well in other states. Research finds that the type of lawyer representing you in these cases matters. Several studies comparing private attorneys to public defenders find that defendants with public defenders are less likely to be convicted, less likely to be imprisoned, more likely to receive bail, and receive shorter sentences than those who have private attorneys hired temporarily by the state. Some research even finds that defendants fare equally well with a public defender as they do when they hire their own lawyer.

Research shows that defendants represented by public defenders who are handling too many cases have higher rates of pretrial detention and longer incarceration sentences. Based on this scholarship, Maine should prioritize funding toward hiring more public defenders.

Finally, Maine should also look to other states for inspiration, particularly for better ways to combine public defenders with private attorneys. For example, instead of assigning attorneys on a case-by-case basis, Maine might follow Vermont, which supplements its public defenders by contracting with private firms that have a ready roster of attorneys. In a contract attorney system, which is a more recent approach to public defense, the state contracts with a private law firm or organization to provide all or part of its public defense. While having a dedicated set of attorneys to work on cases would combat Maine’s declining roster of attorneys, some worry about firms underbidding one another for the contract and then disposing of cases quickly.

The public defense crisis is not unique to Maine. Many states are experiencing high caseloads, not enough attorneys and staff, and a lack of funding. Maine has come a long way in just a few years from a state with no public defender system to one with multiple offices. Yet, as the crisis worsens, research suggests that the path forward is with public defenders.

The stakes for criminal defendants are high. For many, their freedom and their futures are on the line.  Whether you are guilty or innocent, our Constitution protects your right to have a lawyer by your side. The state Legislature and the governor must provide the funding to ensure this right is protected here in Maine. If you want to solve some of these problems, you can call or email your state representative or state senator and ask them to fund more public defenders.

Williams is an assistant professor of criminology at the University of New England. This column reflects his views and expertise and does not speak on behalf of the university. He is a member of the Maine chapter of the national Scholars Strategy Network, which brings together scholars across the country to address public challenges and their policy implications.